Much recent political commentary about North Carolina’s Supreme Court focuses on the 5-2 majority that Democrats will gain in January.
But two of the final decisions the court handed down in 2018 remind us that its decision-making process defies simple partisan calculations. Both decisions were unanimous.
In the first case, Silver v. Halifax County Board of Commissioners, all seven members of the state’s highest court endorsed an opinion clarifying that state government — not a particular county — is “solely responsible for guarding and preserving the right of every child in North Carolina to receive a sound basic education.” The state constitution guarantees that right.
The court rejected arguments put forward by attorneys Mark Dorosin and Elizabeth Haddix, whose names generated statewide publicity last year. The University of North Carolina fired Dorosin and Haddix in 2017 as it shut down the UNC-Chapel Hill law school’s controversial civil rights center. Critics had blasted the center’s ties to left-of-center political causes.
In the Silver case, Dorosin, Haddix, and their plaintiffs wanted state courts to force Halifax County commissioners to increase funding for local schools. None of the state Supreme Court’s current members — four Democrats and three Republicans — endorsed the idea.
“In effect, plaintiffs say county governments would thus be allowed to abandon their fiscal responsibility regarding education with impunity and pass their alleged constitutional duties along to the State,” according to the Supreme Court opinion. “This is not the case. Plaintiffs’ line of reasoning is arguably sound only if one presupposes that counties have such constitutional duties in the first place, and we have determined that they do not.”
It’s worth noting that Justice Barbara Jackson wrote those words. A registered Republican, Jackson lost her re-election bid on Nov. 6. Thus Silver is likely her last written majority opinion for the state’s highest court. Every one of her colleagues endorsed it.
There’s no sign that the case generated any partisan infighting among the justices. The court’s current Democratic majority took no steps to delay a ruling until a fifth Democrat could replace Jackson in January.
Unanimity also characterizes the second opinion worth noting in this space. It’s the latest Cooper v. Berger ruling, part of an ongoing legal battle pitting Democratic Gov. Roy Cooper against Senate leader Phil Berger and his fellow Republican legislative leaders.
In this case, all seven Supreme Court justices agreed that legislators have the power to confirm Cooper’s Cabinet appointments.
The decision included a notable comment on legislative power. “[U]nlike the powers of Congress in the federal model, the General Assembly has the power to legislate on all matters unless the constitution prohibits it from doing so,” according to the unanimous opinion. “Thus, the General Assembly need not identify the constitutional source of its power when it enacts statutes. In fact, in most instances, there will be no particular grant of constitutional authority on which the General Assembly will rely. It will instead rely on its general power to legislate, which it retains as an arm of the people.”
As in the Silver case, a Republican is responsible for these words. Chief Justice Mark Martin wrote them. None of the high court’s four current Democrats dissented.
The unanimous agreement in both Silver and Cooper reminds us that very few state Supreme Court cases have led to divisions along party lines.
Over the past two years, with Democrats holding a 4-3 majority on the state’s highest court, just 13 of 155 cases (8 percent) have yielded 4-3 splits on the results. Just three cases (2 percent) have pitted the court’s four Democrats against its three Republicans. (One caveat: In a March 2018 case, the justices reached unanimity on the result, with the Democrats and Republicans disagreeing about the legal reasoning.)
As both Silver and Cooper demonstrate, the seven justices have been much more likely to reach unanimous conclusions. Over the past year, 77 of 97 cases (79 percent) produced zero dissenting votes. Another seven cases involved a lone dissenter.
Party labels fail to dictate whether justices are likely to reach agreement on a case. It’s true that Martin and fellow Republican Paul Newby have been most likely to agree, in 94 of 96 cases (98 percent). It’s also true that Martin and Democrat Cheri Beasley have been the pair least likely to agree. Yet they still have endorsed the same results in 79 of 96 cases (82 percent).
Meanwhile, Democratic Justice Sam Ervin IV agreed most often this year with the Republican Jackson. He also agreed more often with Newby than with any of his Democratic colleagues.
The three Republican justices wrote 25 of the 62 authored majority opinions, including five of the seven opinions representing 4-3 split decisions. One would hardly expect that volume of Republican writing for the court’s majority if Democratic justices had decided to play partisan games with their rulings.
None of these statistics guarantees that the court’s current collegiality will continue into the new year. Democratic Justice-elect Anita Earls has spent much of her career pursuing left-of-center “social justice” causes. Particularly in the often-litigated redistricting arena, Earls has longstanding ties to partisans fighting Republican legislators’ disputed electoral maps.
But hers is a single vote. Until Earls joins her six new colleagues behind closed doors to debate the merits of particular cases, no one can say for certain how that vote will affect others.
Evidence from the past two years — including the recent Silver and Cooper rulings — suggests the outcome might not match Democratic partisans’ hopes or Republican partisans’ fears.
Mitch Kokai is senior political analyst for the John Locke Foundation.